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DATED: 9/1/2013
CORAM
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Crl.R.C (MD) No.287 of 2012 and
M.P.(MD) No.1 of 2012
Arivazhagan
...
Petitioner
Vs
1. M. Uma
2. Minor Deepthika
3. Minor Arivananthi
...
Respondents
Petition filed under Sections 397 and 401 of the Code of Criminal
Procedure to call for the records and set aside the impugned order of distress
warrant dated 23/4/2012 made in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 on the
file of the Judicial Magistrate, Aranthangi.
!For Petitioner ... Mr.B.Jameel Arasu
^For respondents ...
Mr.K.Baalasundaram
------:ORDER
The Petitioner/Respondent (Husband) has focused the instant Criminal
Revision petition as against the impugned order of Distress Warrant dated
23/4/2012 in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 passed by the Learned
Judicial Magistrate, Aranthangi.
2. The Learned Judicial Magistrate, Aranthangi, while passing the
impugned order in C.M.P.No.9459 of 2010 in M.C.No.5 of 2009 dated 23/4/2012 has
observed that "Petitioner is present. Respondent absent. Filed petition and
allowed. Earlier order of substantial payment not complied by Respondent. Both
side heard. Revision hearing. But no stay on perusal of records the Court
takes that respondent. Purposely avoided for substantial payment. Hence issue
Distress Warrant against the respondent" and directed the matter to be called on
16/6/2012.
3. Assailing the correctness of the order so passed in C.M.P.No.9459 of
2010 in M.C.No.5 of 2009 by the Learned Judicial Magistrate, Aranthangi, the
Respondents/Wife and Children have not filed any counter to C.M.P.No.153 of 2010
and the matter is pending. Therefore, the Respondents have preferred
C.M.P.No.9459 of 2010 before the Learned Judicial Magistrate, Aranthangi under
Section 128 of the Criminal Procedure Code for enforcement of order of
maintenance awarded by the Court.
14. At this stage, this Court aptly points out that Section 12 of the
Protection of Women from Domestic Violence Act, 2005 speaks of an application to
be filed before a Magistrate by an aggrieved person or a Protection Officer or
any other person on behalf of the aggrieved person seeking one or more reliefs
under the Act.
15. Section 18 of the Act refers to the protection orders being passed by
the Magistrate concerned.
16. Section 19 refers to the 'Residence Orders' being passed by the
Learned Judicial Magistrate.
17. Section 20 of the Act speaks of monetary relief being granted to the
aggrieved person by the Magistrate in directing the Respondent to pay monthly
relief to meet the expenses occurred and losses suffered by the aggrieved person
and any child of the aggrieved person as a result of Domestic Violence and such
relief may include but is not limited to
a. the loss of earnings;
b. the medical expenses;
c. the loss caused due to the destruction, damage or removal of any
property from the control of the aggrieved person; and
d. the maintenance for the aggrieved person as well as her children, if
any, including an order under or in addition to an order of maintenance under
Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law
for the time being in force."
18. As per Section 20 (3) of the above said Act, the Magistrate shall
have the power to order an appropriate lumpsum payment or monthly payments of
maintenance, as the nature and circumstances of the case may require.
19. Section 20 (5) of the Act speaks of the Respondent to pay the
monetary relief granted to the aggrieved person within a period specified in the
order under Sub-Section 1 of Section 20 of the Act.
20. Furthermore, Section 20 (6) of the Act upon failure on the part of
the Respondent to make payment in terms of order under Sub-Section 1 of Section
20, the Magistrate may direct the employer or a Debtor of the Respondent, to
directly pay to the aggrieved person or to deposit with the Court a portion of
the wages or salaries or Department due to or accrued to the credit of the
Respondent which amount may be adjusted towards the monetary relief payable by
the Respondent.
21. In reality, Section 25 of the Act refers to the duration and
alteration of the orders passed by the Magistrate concerned. As per Section 25
(2) of the Act, if there is any change in the circumstances and if the Learned
Magistrate is satisfied on receipt of application from the aggrieved person or
the Respondent, requiring alteration, modification or revocation of any order
made under this Act, he may for the reasons to be recorded in writing pass
appropriate orders as he deems fit.
22. However, this Court pertinently points out that the Learned
Magistrate must be circumspect and careful while granting ex parte order either
under Section 23 of the Act or under any other Section of the Act. Only after
subjectively satisfying himself as to the nature of claim/relief made by the
aggrieved person, the Learned Magistrate is to pass an ex parte interim orders
with great care and circumspection only to the extent necessary.
the Criminal Procedure Code in the present of person against whom the order of
payment of maintenance is proposed to be made etc. Further, the reliefs in
respect of orders to be passed under the Act are only civil liability and not
criminal liability, in the considered opinion of this Court.
35. Be that as it may, in view of the fact that as per Section 29 of the
Protection of Women from Domestic Violence Act, 2005, there is an effective and
alternative remedy of filing of an appeal by the Revision Petitioner/Husband as
against the order dated 23/4/2012 in C.M.P.No.9459 of 2010 (M.C.No.5 of 2009)
passed by the Learned Judicial Magistrate, Aranthangi, this Court is of the
considered view that the present Revision Petition filed by the Revision
Petitioner/Husband is not per se maintainable in the eye of Law. Furthermore,
this Court is of the opinion that ordinarily, the Learned Judicial Magistrate
exercising his functions under the Protection of Women from Domestic Violence
Act, 2005 as a Criminal Court inferior to the Court of Sessions and the High
Court. No wonder, a Court of Session is a Criminal Court inferior to High Court
for the purpose of exercise of Revisional Power under Section 397 (1) and
Section 401 of the Criminal Procedure Code. Also, it cannot be lost sight of
that revisional power of a High Court is a supervisor jurisdiction to correct
miscarriage of Justice arisen out of irregularity of procedure being
adopted or misconception of Law etc. To put it succinctly, the power of
revision is parental supervisory in character. However, the Protection of
Women from Domestic Violence Act, 2005 is a special Act and even though the
Learned Judicial Magistrate is empowered to adopt his own procedure for disposal
of an application under Section 12 or under Sub-Section 12 or Section 23 of the
Act. Section 28 of the Act speaks of save as otherwise provided unless Act of
proceeding under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under
Section 23 91) shall be governed by the provisions of the Criminal Procedure
Code, 1973 (2) of 1974, yet the proceedings of the Magistrate are civil in
nature. Looking at from any angle, the present Criminal Revision Petition
filed by the Revision Petitioner/Husband is not maintainable in limini, when he has
an alternative viable and efficacious remedy of filing of an Appeal as per Section 29
of the Act. Viewed in that perspective, this Criminal Revision Petition fails.
36. In the result, this Criminal Revision Petition is dismissed as not
maintainable. It is open to the Revision Petitioner/Husband to prefer an appeal
as per the Protection of Women from Domestic Violence Act, 2005 as against the
impugned order dated 23/4/2012 in C.M.P.No.9429 of 2010 passed by the Learned
Judicial Magistrate, Aranthangi in the manner known to Law and in accordance
with law before the 'Court of Session' and to seek appropriate remedy thereto,
if he is so desires/advised. Consequently, the connected Miscellaneous Petition
is also dismissed.
MvsTo The Judicial Magistrate, Aranthangi.